When a patient agrees to medical treatment or surgery, it is not enough for a doctor simply to ask for a signature on a consent form. The patient must first be given enough information to make a real choice about whether to proceed. This is the principle of informed consent.
Informed consent is a key part of medical practice. It respects the patient’s right to make decisions about their own body and protects against unwanted or unexpected treatment. When the process is not followed properly, the consequences can be serious and may give rise to a claim in medical negligence.
What Does Informed Consent Involve?
Informed consent requires a patient to understand:
- What the treatment or procedure is
- The reasons for recommending it
- The potential benefits and expected outcome
- The risks and possible complications, including those which are rare but serious
- Reasonable alternatives, including the option of no treatment
Consent must be given freely, by a patient with capacity, after a clear and honest discussion. It is a process, not a piece of paperwork.
The Montgomery Case and the Law
The legal standard for informed consent was firmly established in the Supreme Court decision of Montgomery v Lanarkshire Health Board (2015).
The case involved a mother who was not warned of a known risk of shoulder dystocia during delivery. When the complication occurred, her baby was left with severe disability.
The Court held that doctors must take reasonable care to ensure that patients are aware of any material risks of the treatment being recommended, as well as any reasonable alternatives.
A risk is material if:
- A reasonable patient in the same position would want to know about it, or
- The doctor should be aware that this particular patient would find it significant.
This judgment moved the law away from a paternalistic approach and placed patient choice at the centre of decision making.
Common Failures in Practice
There are many situations where informed consent is not properly obtained. These may include:
- Failing to explain the risk of long-term complications such as nerve damage or scarring
- Not discussing alternative treatments that carry fewer risks
- Rushing through consent in a brief appointment without a full discussion
- Taking consent when the patient is under pressure or unable to think clearly
- Reassuring a patient that complications are “rare” without giving figures or context
In each of these situations, the patient is denied the chance to make a fully informed decision.
Why Informed Consent Matters
The importance of informed consent goes beyond avoiding negligence. It reflects respect for patient autonomy and individual values. Two patients may be offered the same treatment but make different choices once properly informed. One may accept a higher risk for the chance of a better outcome, while another may prefer a conservative approach.
Without a proper consent process, patients can be left feeling shocked and betrayed when complications arise. Trust in the medical profession can be undermined, and the consequences for the patient may be life changing.
The Link with Medical Negligence
Where a patient suffers harm as a result of a risk they were not warned about, and they can show that they would have chosen differently if properly informed, there may be grounds for a negligence claim.
For example:
- A patient undergoes surgery and suffers a complication that was not explained. They later state they would have chosen non-surgical management if they had known the risk.
- A woman is not told of the risks of a caesarean compared with natural delivery, and complications arise during birth.
- A patient is offered one form of treatment but not told of a safer alternative. They suffer injury that could have been avoided.
These cases highlight how failures in consent can directly lead to avoidable harm.
Practical Safeguards
To reduce the risk of consent failures, medical professionals are expected to:
- Allow enough time for discussion, without rushing the process
- Use clear, simple language, avoiding jargon
- Provide written information to support verbal explanations
- Encourage questions and answer them openly
- Tailor the discussion to the patient’s individual circumstances, values and concerns
These steps are essential for valid consent. When they are not followed, the patient is left vulnerable to making choices without full understanding.
Conclusion
Informed consent is more than a formality. It is a fundamental legal and ethical duty that places the patient at the centre of decision making. The Montgomery case confirmed that doctors must disclose material risks and alternatives so that patients can make choices that are right for them.
When consent is not properly obtained, and patients suffer harm as a result, this may amount to negligence. Understanding these principles is an important step in protecting patient rights and ensuring accountability in healthcare.
For a confidential discussion about your situation and to understand your options, please get in touch today.
Samuel nurse
Clinical Negligence Paralegal
Samuel Nurse is a clinical negligence paralegal progressing his legal career through the CILEX route. In his role he focuses on developing a strong understanding of complex medical issues, applying analytical skills and attention to detail to support the progression of claims. His earlier experience at a nursing expert witness company gave him valuable exposure to clinical negligence work and the importance of expert evidence in litigation, which now informs his approach as a paralegal.
